Sexting is Considered Being Unfaithful, But Not Grounds for Divorce, Say Legal Experts

Rep. Anthony Weiner, D-N.Y., and his wife, Huma Abedin, an aide to Secretary of State Hillary Rodham Clinton, are pictured after a ceremonial swearing in of the 112th Congress on Capitol Hill in Washington in this photo taken Jan. 5, 2011.
(AP2011)

New York Democratic Rep. Anthony Weiner's scandalous online dalliances with a string of women – including a porn star he coached to lie – not only places him in hot water with his congressional colleagues, but his history of sexting and phone sex could at least be a contributing factor in a divorce proceeding, if not the primary reason itself, legal experts say.

While most states have a "no-fault" divorce policy -- meaning that a person wanting a divorce does not have to establish fault – legal experts say they’re seeing an increase in social media issues cited in divorce cases.

If Huma Abedin, Weiner's wife and top political aide to Secretary of State Hillary Clinton, were to give the sexting lawmaker the heave-ho, legal experts say it would certainly help her case.

Silvana D. Raso, a New Jersey divorce attorney, says that “most courts will recognize this as a form of being unfaithful through an outside romantic relationship, ” adding that, “most people do set forth why they are getting a divorce and can use this as the reason.”

“Even communications on social media that start out ‘innocently’ and never culminate in a physical relationship can have devastating impacts on a marriage as is evident in the Anthony Weiner case,” she said. “I often deal with spouses who are looking to divorce because the other spouse did not ‘cheat' in the traditional sense but was involved in an emotional affair via social media.”

“This is a prime example of an emotional affair -- an emotional connection established with someone they may never meet -- for example online -- without consummating the relationship, can be seen as being unfaithful,” Raso said.

New York attorney Jonna M. Spilbor agrees. "Sexting, while not technically adultery, is cheating. But she says in New York divorce proceedings cheating "hits you in the heart, more than it hits you in the wallet."

"In other words, divorcing your cheating spouse doesn’t get you a bigger piece of the marital pie. The only way a cheating spouse might get the short end of the stick, when splitting up the marital estate, is if he or she cheated so badly that the non-cheating spouse was completely emotionally scarred and couldn’t live a normal life thereafter. And in this day and age, when cheating is as prevalent as breathing, it simply won’t matter much to a judge."

Attorney Stephen Haller, who represented disgraced former New Jersey Gov. James E. McGreevey in his divorce, has a slightly different take saying, “there’s no specific grounds anywhere that I know of where sexting is listed as grounds for divorce.”

But he does say that text messages and sending racy pictures can be used as evidence constituting irreconcilable differences, but not necessarily adultery.

“Going after other women is irrefutable evidence that constitutes a cause of action -- in this case irreconcilable differences,” Haller said.

Proving adultery is more complicated. Haller says it requires proof that a physical relationship took place at specific times, and that the cheating spouse and the lover were "inclined" to participate in sexual relations.

Haller says Abedin may be less inclined to say the “sexting” was the primary reason for divorce because then the “other woman/women,” legally known as the “co-respondent” would have to be contacted and involved.

Weiner said he repeatedly apologized to Abedin, who was not present at the press conference. He claims that prior to him coming clean publicly, his wife was already aware of some of his indiscretions with other women, although he said that he did not have a physical relationship with any of the women and has never had sex outside his marriage.

Weiner also said he has "no intention of splitting up" with Abedin, but said that she was "not happy" about his actions.

If his wife does decide to kick him to the curb, the sexting incident could give her powerful evidence for her case.